by Pamela Paul
By defending pornography as free speech, so-called advocates could actually be seen as threatening its foundations, as the Supreme Court noted in the 1973 Miller v. California obscenity case, the federal court’s last major ruling defining pornography: “In our view, to equate the free and robust exchange of ideas and political debate with commercial exploitation of obscene material demeans the grand conception of the First Amendment and its high purposes in the historic struggle for freedom.” According to the decision, obscenity—which is not protected by the Constitution’s First Amendment—is material that a judge or jury finds is, as a whole, appealing to a prurient interest in sex, depicts sexual conduct in a patently offensive manner, and lacks serious literary, artistic, political, and scientific value. Using that definition, would Gag Factor 15 pass muster? How about the online how-to guide to creating an Asshole Milkshake? Until very recently, no one even conceived that the First Amendment would apply to pornography, which was considered by common consent and by law to be unworthy of protection. Not only do pornographic images stretch the definition of “speech” but, as disseminated in the marketplace, they have a similar demonstrable effect on women as a white person making a threatening and vulgar racial epithet toward a black man or woman, which courts have already ruled to be unprotected by the First Amendment.
Moreover, rather than impose some kind of nationwide dictum, as its opponents suggest, the law in question gives considerable freedom to local communities to decide what’s permissible. According to Miller v. California, localities are allowed to apply a “community standard” to make their own decisions about “obscenity” based on contemporary mores. A town can determine what kind of storefronts they want visible on Main Street or whether they want billboards advertising pornographic materials on their highways. Of course, the idea of “local community” shifted radically following the introduction of satellite television and the World Wide Web. A pornography shop operating on the wrong side of town can be easily opposed by a town council, but a Moscow-based Internet entrepreneur or even a San Fernando Valley pornography empire beaming their goods worldwide online does not easily fall under any local jurisdiction. But just because the community standard doesn’t fit this new paradigm does not mean we should give up on it altogether.
A large majority of Americans aren’t ready for defeatism either. According to a 2004 nationwide poll by Wirthlin Worldwide, 79 percent of Americans agree that laws against distributing obscene materials on the Internet should be vigorously enforced.15 (Democrats are as likely as Republicans to agree.) Despite the limitations of the community standard, a significant number of Americans (37 percent) believe pornography should be illegal to all and a majority (60 percent) believe it should be illegal to anyone under the age of eighteen.16 Surprisingly, men are significantly more likely than women to want pornography illegal for minors (69 percent of men versus 52 percent of women). Furthermore, only 4 percent of Americans believe pornography should be legal for all. If the local community doesn’t exist on the World Wide Web, then perhaps we need a new standard, one that may not wipe out the world’s pornography but could control its excesses within our nation’s borders. In America today, it is easier to get pornography than it is to avoid it; we have protected the rights of those who wish to live in a pornified culture while altogether ignoring the interests of those who do not.
Some argue that what goes on in the privacy of an individual home isn’t subject to any kind of community standard and therefore the Supreme Court’s ruling doesn’t apply. This argument, too, is shaky. Pornography affects not only the individual user but the user’s family members, colleagues, and peers, as well as strangers and acquaintances with whom the user interacts every day. The effects of pornography extend well beyond the privacy of a single person’s household. Moreover, what goes on inside a private home isn’t a free-for-all. Husbands beat their wives inside the privacy of the home and kids are sexually molested and abused; though using pornography shouldn’t be equated with such crimes, the common link is harm. Pornography need not be criminalized in order for it to be condemned.
But once again we spend far less time criticizing pornography than we do in ensuring its existence and dissemination. People speak of Internet accessibility in hushed terms, as if an unfettered right to online material is the divine and essential right of man. Yet entertainment and information in all other media contain barriers to entry: Movies require the purchase of a ticket. Television is regulated in terms of what can appear: the language used on network sitcoms is restricted, and the programming a six-year-old is liable to encounter when he tunes in to cartoons on Saturday morning is clearly outlined by the federal government. Public libraries require people to apply for a library card, giving up “personal” information as a prerequisite for checking out material. Marketers are prevented from making unsolicited telemarketing phone calls to people who sign up for the Do Not Call registry, a regulation recently upheld by the Supreme Court.
Still, defenders of pornography argue that people have a constitutional right to access pornography on the Internet and requiring a screening process violates that right. “Screens drive away users,” the ACLU has said. “Users don’t want to give their credit card [numbers] in order to see material that is meant to be seen for free on the Web.”17 But the “burden” of asking a person to use a credit card number in order to access materials is far from censorship. Rather, it is a small inconvenience, surmounted in a matter of seconds. If adults are rankled by the requirement, then they don’t have to visit the pornography site, and can access pornography through other media—media that, incidentally, are restricted. Second, there’s the false claim that such materials are “meant to be seen for free.” Meant by whom? What omnipotent force deemed this the right of all citizens? True, pornographers offer free material to entice users into purchasing harder content. True, pornographic content may be pirated and offered for free to users, violating copyright law and ethical business practices, but that does not ensure that everyone necessarily must have the “right” to view pornography for free.
More than a form of speech, pornography is a commercial product, manufactured and distributed by companies from one entrepreneur to huge corporations, and subject to the rules and ethics that govern commerce, not communication. Is oil censored? Are guns censored? Pharmaceuticals? Name a business in America that is not subject to trade regulations, taxes, zoning restrictions, pricing controls, distribution limitations. Asking an adult to punch in credit card numbers in order to access material is as much censorship as asking a youthful-looking adult trying to purchase cigarettes for proof that he or she is over eighteen. When people are carded at the movie theater for trying to enter an R-rated movie, nobody fights against it, championing their access to “free speech.” The fact is, censorship already exists, if that’s what one chooses to call it.
There are no convincing reasons why pornographic material should be limitless on the Internet while it is clearly limited elsewhere, but there are convincing arguments in favor of requiring credit card identification to gain access to pornography online. Perhaps punching in those numbers will offer consumers the opportunity to reconsider what they’re doing rather than mindlessly looking at exploitative material. Take the case of Andy Bull, the former online editor of The Times of London, who became an Internet pornography addict while conducting research for a book about the Internet. Bull ultimately served three months in prison for child pornography use. Before his pornography problem developed, Bull was a devoted believer in the World Wide Web. “I had the zeal of a convert,” he recalled recently in an essay published in The Times’s magazine. “It seemed obvious to me that the cyber-dollar would become the international currency, English the international language. The Internet could make true, grass-roots democracy realizable for the first time…. I was also struck by the libertarian ideals of those who created the World Wide Web. They decreed that the Internet must be free: free of imposed values, morals, restrictions. They did no
t recognize intellectual property rights any more than conventional sexual mores. Online, no one should have to pay for anything. Like revolutionaries down the ages, they spurned censorship of any kind.” Bull’s book was meant to document this phenomenon, which he called the “Virtual Eden”—a place where it was “down to the individual’s conscience what they do and do not look at and delve into.” Conscience notwithstanding, soon Bull was regularly looking at pornography online. His slip into child pornography was gradual—it didn’t begin until several years after he began looking at cyberporn, and it started the way it begins for many others: first the teenage girls, then the pubescent girls undressing, etc. Soon he was looking at popular “schoolgirl” magazines downloaded from Japan. Four years later, still “researching the book,” Bull was arrested at home in front of his shocked wife of twenty years, fifteen-year-old daughter, and twelve-year-old son. As a result of his experience, Bull believes online anonymity must end:
Just as when we travel the real world, we must carry a passport, so we should carry an online passport. Technically it could be done—if there were the will…. Surely there will be at least a niche market for an ISP that guarantees its search engine will not list illegal or dangerous material, that insists that your ID is visible to the proper authorities when you surf, and which will monitor activity on your account…. There are companies who are looking hard at Internet security, but all too often their products are designed to protect the criminal, not the victim. The most blatant have names like History Kill and Evidence Eliminator. They promise to cover your tracks online.18
Such measures are tough to pass. Opponents of the courts’ efforts to limit pornography raise pointed questions about just what would be included under “indecency” laws. What is “patently offensive,” they ask, arguing that one person’s standard might differ so radically from the next person’s that it would lump committed homosexual coupling with hardcore images of women being brutalized. What lacks “serious” value? One person’s estimation of offensive hardcore pornography might be the next person’s erotica.
Certainly, to get the government involved in people’s private sex lives is a scary proposition. What’s deemed dangerous by one person may be normal, even pleasurable to another. Reasonable people might assume that it’s “obvious” what we mean by obscenity—a definition that would likely include violent pornography, scatological porn, bukkake—but it takes just one government administration to decree that all homosexual acts are obscene to understand why obscenity is an uneasy standard to enforce. Most Americans are probably like Justice Potter Stewart when they say that while they cannot define pornography they know it when they see it. To pretend that the line between an R-rated film with depictions of sexuality and a XXX movie with hardcore double penetration and “money shots” is anywhere close to being blurred is willfully obtuse and plays into the worst fears of those who might otherwise naturally oppose pornography.
Nonetheless, we have to be able to draw a line somewhere; throwing up our hands, or defending the indefensible because the dilemma poses difficulty, is not the answer. The vast majority of Americans support the First Amendment, but pornography is not solely or even primarily an issue of free speech. Nor should one interpretation of the First Amendment be the only guideline, the only right, the only moral that matters. Just as pro-choice Americans can advocate fewer abortions while defending the right to have abortions, surely Americans can find practical ways to limit and regulate the pornified culture without challenging our constitutional foundations and rights. We shouldn’t just worry about the consequences of banning pornography; we also need to worry about the consequences of letting porn proliferate unfettered. Pornography should move beyond a discussion of censorship and into one of standards.
Out with the Old
Just as there are problems with the arguments in favor of pornography so are there with existing arguments in opposition. To date, the outcry against pornography has predominantly come from otherwise distant corners of the political spectrum. Religious opponents deem pornography a sin, a moral offense against God, and a desecration of the holy bonds of matrimony. Right-wing political opponents cite the frequent abuse of pornography among pedophiles or noted serial killers like Ted Bundy and Jeffrey Dahmer. And many feminist and legal opponents argue that pornography leads to rape and that all sex is violence.
To date, the federal government’s response to pornography has made it easy to ignore or oppose. John Ashcroft’s efforts in the first Bush administration could be easily lumped with his Patriot Act tinkerings with civil liberties or with his intolerance for a nude sculpture of Justice in a government building. Asked about Ashcroft’s efforts to clamp down on pornography, Hugh Hefner blamed the religious Right, telling CNN, “We’re dealing with religious fanaticism overseas … and at the same time, we’re allowing a certain amount of religious fanaticism to do the same kind of foolish things at home.”19 Proponents of pornography, not surprisingly, find it easy to defang these brands of opposition through mockery and exaggeration.
One of the main problems with the conservative and religious opponents to pornography is they tend to oppose the very thing that would help alleviate the problem: sex education. For example, Patrick Fagan, formerly of the Child and Family Protection Institute and currently a Heritage Foundation fellow, has said, “Pornography can lead to sexual deviancy for disturbed and normal people alike. They become desensitized to pornography. Sexual fulfillment in marriage can decrease. Marriages can be weakened. Users of pornography frequently lose faith in the viability of marriage. They do not believe that it has any effect on them. Furthermore, pornography is addictive. ‘Hardcore’ and ‘softcore’ pornography, as well as sex-education materials, have similar effects.”20 Sex education is a far cry from pornography; only such pornography opponents—and, ironically, pornographers—fail to see a distinction. Yet sex education could help clarify the differences between pornography and other forms of sexual expression. The solution to pornography’s insidious message to men, women, and children is not isolating the information available, but ensuring that people have context. For children to understand why pornography is wrong, they need sex education programs that explain healthy sexuality and demonstrate why pornography is fundamentally opposed to the exercise of positive sexual pleasures. By perpetuating the idea that all sexuality is “taboo,” conservative opponents only encourage and legitimize pornographic rebellion.
Many conservative opponents lump pornography with what they deem to be other forms of sexual deviancy, such as homosexuality and extramarital sex. Opponents use pornography as an easy opportunity—who wants to come out in favor of smut?—to legislate other forms of sexual behavior, such as homosexuality and birth control education. Such arguments against pornography create a problem for all of pornography’s opponents by giving substance to fears of a slippery slope. Similarly, on the civil libertarian side, where many liberals dislike or disapprove of pornography, advocates bundle the issue with sex education and classic erotic novels, deliberately blurring the lines to win liberals to their side. On both sides, deliberate obfuscation is the way the game is played.
As for what would seem to be an expected female opposition to pornography, women have largely silenced themselves on the issue, not having made much of a peep since Gloria Steinem donned her bunny ears more than thirty years ago. * Many women seem to have bought into the idea that they should either accept men’s involvement with pornography or get in on it themselves. The only arguments against pornography from women come from conservative hothouses like the Eagle Forum and Concerned Women of America and from feminist hardliners Andrea Dworkin and Catherine MacKinnon, making for strange bedfellows. Cultural conservatives argue that pornography subverts the biblical view of womanhood, while legally oriented feminists argue that pornography endangers real-life walking and talking women. Cultural conservatives argue that pornography is one of several threatening sexual perversions, while feminists typically defend and support h
omosexuality. Cultural conservatives oppose the dissemination of sexual information, while feminists are the authors of Our Bodies, Ourselves.
The result is that both sides have lost what may otherwise be a natural, broad-based following among women. Those on the Right moralize about sex and erotica and the state of the family in general, thereby alienating women who want to celebrate their sexuality while rejecting pornography. Meanwhile, women on the Left focus their sights on a legal battle against pornography, and in gathering their arguments and their statistics ignore anyone who rejects the idea that all women are victims and that all sex is rape. While pornography does exacerbate discrimination, the legalistic attack on pornography has been forced into an untenable position. “Harm” legally must be proved, thus opponents spend their time trying to show that pornography inevitably leads to violence, that pornography causes men to rape. The backflips of logic and evidence required to make that point strike most people, and most courtrooms, as unpersuasive. Meanwhile, all other feminist, liberal, and moderate arguments against pornography have gotten lost.
When pressed or questioned, most people—even those who dislike pornography—bleat out defenses of pornography like recordings, falling back on legalistic jargon and irrelevant abstractions. But the bottom line is that none of the old arguments about pornography reflect how it affects people’s lives and infiltrates their relationships today. Nor are there proposals to contend with the new reality of our pornified culture. In fact, most people don’t talk about whether they’re “for” or “against” pornography anymore; the cultural consensus seems to consider the matter beyond debate. Through complacency and carelessness, the majority of Americans shrug or laugh off the issue as inconsequential and irrelevant to their lives. But as we have seen, the costs to our relationships, our families, and our culture are great, and will continue to mount. Clearly, we need to find new ways to approach the problem.
